Dr. Margaret Fitzgerald-O'Reilly:

I thank the committee for inviting me here today. I very much welcome the opportunity to be able to discuss the changes proposed under the Sex Offenders (Amendment) Bill and the Private Members' Bill. I will focus on three of the proposed amendments today. The first is on the Private Members' Bill, the purpose of which is to regulate and restrict sex offenders from travelling abroad in order to protect persons from serious harm outside of the State.

The proposals echo similar provisions available elsewhere, including the UK, the US and Australia, which have in some way sought to ban or restrict the travel of sex offenders abroad. The rationale for such provisions is that individuals who have offended against a child pose an extremely high risk of re-offending and that these laws will stop them from doing so. Perceptions of dangerousness are overestimated to some extent and studies in Ireland and elsewhere have shown that recidivism among sex offenders is low. The effectiveness of such laws are also in doubt. In 2016, a global study on sexual exploitation of children in travel and tourism found that sexual exploitation of children in such circumstances is a mainly domestic and intra-regional crime and that situational and domestic offenders account for most cases of such abuse, rather than international preferential offenders. While some abusers are paedophiles, most are not.Most are situational offenders, namely, those with no prior history of sexual offending against a child. While child sexual abuse and exploitation is, and should be, an important policy concern for lawmakers, it does little good to enact laws and impose requirements such as travel bans or restrictions when there is no evidence to suggest that such laws are effective in reducing the risk to those they aim to protect.

It is necessary to consider rights such as the right to travel, the right to liberty and the right to privacy and family life under both the Constitution and the European Convention on Human Rights, ECHR. Constitutional and-or human rights violations may be found as a result of arbitrary, unnecessary and disproportionate interference with such rights. In particular, these provisions could give rise to an unjustifiable interference with privacy and family life under Article 8 of the European Convention on Human Rights and, perhaps, with earning a livelihood where the individual has to travel for work or to enjoy family life, for example, in a cross-jurisdictional context. If restrictions rather than a ban are to be placed upon travel, it needs to be made clear how these will be imposed and implemented so that they will not be considered to be arbitrary and unnecessary. Any restrictions imposed will require increasing the quality, quantity and regularity of the information shared with other jurisdictions on child sex offenders in order to effectively oversee the movement of offenders who travel abroad. At a practical level this may be difficult to achieve because it becomes a resources issue. Overall, I would suggest that the circumstances which would give rise to these restrictions need to be clearer; an evidence-based risk should exist and the restriction or ban must be deemed to be proportionate and necessary in all the circumstances. This could be expressly incorporated into the wording of the provisions.

My second point is on Head 10 of the main Bill, which deals with community disclosure. I welcome legislative clarity relating to the disclosure of information to the public, as well as the controlled disclosure approach being proposed. Generally speaking, disclosure laws are enacted with the objective of preventing recidivistic sex crimes. Such laws may garner strong support in the belief that knowing where sex offenders are will make us safer. However, the effectiveness of disclosure in this regard has been called into question by countless studies. Empirical research has not uncovered any demonstrable effect on future sexual offending. Moreover, rather than reduce fear, disclosure in some circumstances can heighten the fear and anxiety of persons who have received such information. There is a need for follow-up support in such circumstances.

The wording of the proposed provision seems to suggest that the issue of disclosure rests with the Garda and is thus proactive rather than reactive. I would like clarification on whether the provision intends to be reactive in the sense of permitting applications from parents, guardians or third parties. While the proposal is not confined to the protection of children insofar as it aims to protect any person, it is worth noting that equivalent provisions in the UK provide that disclosure will only be made to the person-persons best placed to protect the child or vulnerable adult rather than to the public at large. I would strongly suggest consideration be given to the inclusion of such wording in the context of this provision as well, where it involves protection of a child. Moreover the provisions does not make any mention of confidentiality of the information once a disclosure has been made. This is notable, considering that under Head 9, confidentiality is expressly required in relation to information sharing, albeit in a different context. Confidentiality should apply, in particular with regard to data protection laws. This should be incorporated into the proposed amendment. Overall, the provision should expressly provide that disclosure will only be made in exceptional circumstances where considered necessary and proportionate to do so.

My final point relates to Heads 13 and 19, which provide for electronic monitoring of sex offenders, either as part of a sex offenders order or as a condition of post-release supervision. The rationale of such a measure appears to be to monitor compliance or identify risky behaviour. While measures such as electronic monitoring may provide reassurance and are argued to have a deterrent effect, such a measure also raises legal and ethical concerns. Any scheme which proposes to introduce tagging of those who have already served their sentence raises the issue of additional punishment, possibly in breach of the constitutional principle of proportionality. Tagging is far more intrusive than signing on at a Garda station and it has a greater impact upon privacy and freedom of movement rights. A way of reconciling such constitutional concerns could be to incorporate the measure as part of a remission scheme whereby early release may be granted in conjunction with tagging. Alternatively, the courts could be required to take electronic monitoring into consideration when sentencing and thus ensure proportionality in the combined overall sentence. The effectiveness of this measure, in terms of deterrence or preventing recidivism, is empirically unproven. Evidence that it reduces recidivism is scant and experience in other countries on a more general level and in regard to monitoring of high risk sex offenders has demonstrated that it has significant limitations in this regard. There is limited evidence available in the US and in some jurisdictions in Europe to support the contention that the tagging of high risk sex offenders may be useful in terms of ensuring compliance with registration requirements but such measures have no perceived effect on recidivism. Where monitoring reveals a new crime, this tends to be in relation to a breach of registration requirements rather than sexual re-offending. The research shows that electronic monitoring is not cost effective and, moreover, that knowledge about offenders' whereabouts will not necessarily effect change in underlying criminal behaviour. The support for electronic monitoring has been described by some as a "belief in a technology-focused approach as a 'silver bullet' to solving crime and other social problems" but that this provides a "misleading assurance of safety." Electronic monitoring is a short-term solution and while it may address some immediate concerns in relation to individual high risk sex offenders, it does not provide the means for effectively dealing with sexual offending behaviour in the long term. The best available evidence suggests that monitoring is more effective when it is carefully targeted and integrated with other forms of supports and risk management. Given the lack of research in this area with regard to the effectiveness of tagging and its impact upon the monitored person and his or her family, there is a strong argument to be made that there should be an inbuilt evaluation of the impact and effectiveness of this initiative if introduced.

There are significant gaps in our knowledge of whether these and other sex offender laws have any effect in terms of reducing sexual offending or reoffending behaviour. Sex offenders are most certainly not a homogeneous group. They vary considerably in terms of their characteristics and level of risk. What is sorely needed are empirically derived risk assessment procedures that will help us to target and more effectively manage those at highest risk of sexual re-offending.